Judge: Carolyn M. Caietti, Case: 37-2023-00016258-CU-BC-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00016258-CU-BC-CTL KHWAJA VS LAWYERS TITLE COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Lawyers Title Company's Demurrer to Plaintiffs' First Amended Complaint is OVERRULED.

Defendant's moving request for judicial notice is granted and notice will be taken to the extent permitted.

(Evid. Code, § 452(d); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 ['while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.'].) Plaintiff's opposition request for judicial notice is granted and notice will be taken to the extent permitted.

(Ibid.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) The FAC alleges Defendant breached a title policy related to property in Rancho Santa Fe and committed insurance bad faith by refusing to defend them against a cross-complaint in an underlying action by certain family members. The FAC asserts causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing.

Defendant demurrers to both causes of action on grounds of failure to state a claim based on the statute of limitations and uncertainty.

For a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must 'clearly and affirmatively' appear on the face of the complaint and matters judicially noticed.' (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420.) 'This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar Calendar No.: Event ID:  TENTATIVE RULINGS

2991345  38 CASE NUMBER: CASE TITLE:  KHWAJA VS LAWYERS TITLE COMPANY [IMAGED]  37-2023-00016258-CU-BC-CTL of the applicable statute of limitation as an affirmative defense.' (Lockley, supra, at p. 881.) 'It is not sufficient that the complaint might be barred.' (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324–325.) Here, all parties cite to Lambert, infra and agree the limitation period for an action under a title insurance policy for failure to defend accrues when the insurer refuses the insured's tender of defense but is tolled until the underlying action is terminated by final judgment. (Lambert v. Commonwealth Land Title Insurance Co. (1991) 53 Cal.3d 1072, 1080.) However, the parties disagree on whether the underlying action was litigated to a 'final judgment.' A time-bar defect does not appear 'clearly and affirmatively' on the face of the complaint and matters judicially noticed as the appeal was dismissed because the judgment entered did not address all pending causes of action (Plaintiff's RFJN 6) and matters in the underlying matter remain on calendar (Plaintiff's RFJN 1).

To the extent the demurrer is based on grounds of uncertainty, the demurrer is overruled. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 ['A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.'].) Here, the FAC alleges the cross-complaint, in its entirety, was tendered for defense and Defendant denied the claim. Any ambiguities can be clarified in discovery.

For these reasons, the demurrer to both causes of action is OVERRULED.

Defendant is ordered to file and serve an answer by December 29, 2023.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendant is ordered to serve written notice of the Court's final ruling by December 19, 2023.

The parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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